Excerpted From: Elyse Slabaugh, Dignity, Deference, and Discrimination: An Analysis of Religious Freedom in America's Prisons, 49 Brigham Young University Law Review 269 (2023) (202 Footnotes) (Full Document)

ElyseSlabaugh“Prisoners are persons whom most of us would rather not think about [,]” Justice William J. Brennan states at the beginning of his dissenting opinion in O'Lone v. Estate of Shabazz. He continues: “Incarceration by its nature denies a prisoner participation in the larger human community. To deny the opportunity to affirm membership in a spiritual community, however, may extinguish an inmate's last source of hope for dignity and redemption.”

Justice Brennan's opinion reflects a thorough understanding of religion's centrality in American society and its ability to provide hope and meaning to one's life. His response also reveals a deep concern for the incarcerated--who often cannot enjoy the full exercise of their religion while in prison. At the heart of his statement is the idea that prisoners--even those perceived as society's “worst offenders”--still retain human dignity. They are still individuals who, although they may be denied full participation in society, desire full participation in their chosen spiritual community. They are still individuals who “hope for dignity and redemption[,]” and as such are deserving of the fullest measure of religious freedom that can be offered to them.

However, the free exercise of religion often presents a complex reality in prisons. Courts have long rejected the view that prisoners are “slaves of the State” to whom the Bill of Rights does not apply, but it is well-settled that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Yet courts have consistently held that religious freedom is “one of the fundamental 'preferred’ freedoms guaranteed by the Constitution[,]” and therefore religious freedom claims “fall[] in quite a different category” than other claims.

Even so, there are compelling penological objectives--such as security, safety, deterrence of crime, rehabilitation, and orderly administration--that often come into direct conflict with an inmate's right to free exercise of religion. Thus, the ability and willingness of prison administrators to accommodate religion in prisons has fluctuated over the years. Although the ideal of religious freedom was written into America's earliest documents, “[t]he struggle to make religious freedom real in America has been long and tempestuous[,]” and the story is no different in America's prisons.

Examining this history reveals two important points: first, religious minority groups have played a central role in the progression of religious freedom in prison; and second, over the years, the standard of scrutiny for free exercise claims has not only been easily alterable but also unclear and inconsistent in its application. A glance back to the not-so-distant past confirms that “[t]he difficulties of prison administration create the potential for prisons to succumb to neglect, racism, and religious intolerance and for prison officials to curtail inmates' rights not only when necessary, but also when merely convenient.”

Recent legislation, such as the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), has significantly improved the state of religious freedom in prisons by not only offering more protection to religious minorities through a return to strict scrutiny, but also providing a more permanent and effective standard to guide courts in their efforts to balance the competing interests of state and individual. Even so, the unique nature of the prison context, the variety of free exercise issues that can arise there, and an extensive history of overlapping and conflicting legal standards has led to confusion, even today, among courts as to how exactly those standards should be applied in practice.

This inconsistency is due in large part to two U.S. Supreme Court decisions. The first, Cutter v. Wilkinson, upheld RLUIPA as constitutional, but also put forth a “due deference” approach in dicta. The second, Holt v. Hobbs, decided ten years later, took a more scrutinizing approach but did nothing to strike down or clarify Cutter's deferential language. In the aftermath of Holt, most lower courts have followed its hard look approach; however, given that Cutter has not been overruled or discounted by subsequent decisions, due deference remains an avenue for courts to use when they so choose. Thus, although the theory of strict scrutiny was well-established through RLUIPA, in practice, some remnants of a deferential approach remain among lower courts.

This Note argues that courts must adhere to strict scrutiny, not only in theory, but also in practice. In doing so, it will first give a brief, general overview of the history of religious freedom in the prison system, with particular focus on the efforts and struggles of religious minorities. Then it will address the inconsistency between Cutter and Holt while comparing the due deference and hard look approaches. Finally, to provide some concrete examples of why this matters, this Note will examine two issues more in-depth: First Amendment retaliation claims and equal treatment claims. It will look at several recent cases to further support the conclusion that strict scrutiny is not only necessary to protect religious minorities' rights, but it is also both practical and feasible, even in the prison context.

[. . .]

When trying to pass RFRA, Senator Orrin Hatch stated: “We want religion in the prisons.” Although a laudable statement, it is arguably misleading. Religion has always existed in prisons. Even the briefest glance at this country's history reveals that Christianity had a strong and well-protected presence in early-American prisons. Religious freedom, on the other hand, has not always existed in America's prisons. What many do not understand is that religion and religious freedom are not interchangeable terms. Just because religion exists in prison life does not mean that religious freedom does. Therefore, a more fitting statement would be: “We want religious freedom in the prisons.”

Although many individuals are afforded the freedom to exercise their religion in prison, many others are not. While some may be complacent with the fact that most mainstream religions are afforded free exercise in prisons, those with a more thorough understanding of religious freedom know that merely providing protection for the majority is not enough. James Madison recognized this when considering the dangers posed by granting government favor to one religious sect. He said, “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” Therefore a threat to one religious denomination can easily be transferred to another denomination or to all religions in general if protections are not in place for religious freedom. Religious freedom ultimately protects everyone--believers and nonbelievers alike--when it protects the rights of the minority.

Although the realities of prison life raise complex issues regarding the free exercise of religion, key court decisions and legislation like RFRA and RLUIPA have established that religious freedom should not be suppressed or infringed without compelling and reasonable justification from prison officials. The history of religious freedom in America's prisons, however, demonstrates that the level of judicial scrutiny applied to free exercise cases has been quite variable. Even with RLUIPA's strict scrutiny mandate, courts remain confused regarding the amount of deference that should be afforded to prison officials, and in practice, remnants of a deferential approach remain among lower courts. This is troubling because such practices weaken the protections provided by RLUIPA's strict scrutiny standard.

Additionally, because the status of religious freedom in prisons has fluctuated over the years, there are still many unsettled questions that must be addressed in the future, both regarding the level of deference in RLUIPA claims, but also regarding other issues such as retaliation and equal treatment. Reflecting on the history of religious freedom in prisons and current issues that still arise for religious minorities, it is clear that a true hard look approach to strict scrutiny can resolve some of those issues while still addressing important penological concerns. Holt and Ramirez have demonstrated that a hard look strict scrutiny standard is feasible. Even in the most intense and precarious of situations--such as the execution of a death row inmate, where security, safety, and order are of utmost importance--strict scrutiny has proven to be a workable standard.

Such an approach acknowledges the central role that religious freedom plays in protecting human dignity. Professor Eiichiro Takahata has stated that “every person has a right to behave as a human, be treated as a human, and think as a human.” Part of what makes us human is our ability to seek out religious meaning and purpose in our lives. Although prisoners are by necessity denied many basic constitutional rights, to also deny them of religious expression and community is to deny them an important part of their human dignity. In his concurring opinion in Procunier v. Martinez, Justice Marshall stated:

When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for self-realization concluded. ... It is the role of the First Amendment and this Court to protect those precious personal rights by which we satisfy such basic yearnings of the human spirit.

Understanding this core principle of human dignity as well as the importance of safeguarding religious freedom for all individuals--whether mainstream or marginalized--must therefore be the guiding light behind any discussions surrounding religious freedom in prisons. Only with this perspective can courts, prison administrators, and scholars resolve the complexities of free exercise litigation.

While deference to prison officials may be the easier choice in many situations, a hard look analysis does more to balance the competing interests at play--both respecting the human dignity of the inmate and protecting the prison's compelling interest in security and safety. Although deference has a time and place, its place is not with strict scrutiny. RLUIPA requires courts to uphold strict scrutiny not only in theory, but also in practice.

J.D. Candidate, BYU Law School, April 2024.